There are two questions in this case, one of limitations, the other of remedy.

The limitations question can be put in a nutshell.

Section 10 (b) of the National Labor Relations Act provides in part that no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made.

An employer and a union enter into a collective bargaining agreement, by which, the Union is recognized as the exclusive bargaining representative and which contains a conventional union shop agreement or provision.

The agreement is, in all respects, valid on its face.

However, at the time it was entered into, the Union did not represent a majority of the employees within the unit.

More than six months later, an unfair labor practice charge is filed.

Based upon that charge, a complaint issues and the Board finds that within the six-month period, the company and the Union continued the agreement in effect and executed and continued a second agreement in effect, and these acts within the six-month period constitute unfair labor practices.

The sole foundation for the conclusion that the acts within the period constitute unfair labor practices are the unfair labor practice of entering into the agreement when the Union had no majority which occurred more than six months before the charge was filed.

Justice John M. Harlan: Was there a charge based on the original making of the agreement?

Mr. Bernard Dunau: Yes, sir.

The charges were based upon the original making of the agreement.

Justice John M. Harlan: So stated?

Mr. Bernard Dunau: In so many words, Your Honor.

The amended charge stated -- the original charge against the company and the amended charge against the Union stated in so many words, inter alia, at the time of the execution of this collective bargaining agreement on August 10, 1954, the Unions were not unassisted and/or majority representatives of the employees in the unit.

Justice William J. Brennan: Is that charge in the record?

Mr. Bernard Dunau: Yes, Your Honor, it is.

Justice John M. Harlan: Where?

Mr. Bernard Dunau: The charge against the Union, the first one, appears on page 260, the charge against the employer on 263 and the amended charge against the Union on page 265.

The complaints themselves, inter alia, alleged that the -- at the time of the entry into the first agreement and at the time of the entry into the second agreement, the Union did not in fact represent a majority of the employees within the bargaining unit.

It was solely upon the basis of that unfair labor practice which antedated the charge by more than six months that the complaint -- that the conduct within the six months period was adjudicated to be an unfair labor practice.

Justice Charles E. Whittaker: Is it correct, however, to say, Mr. Dunau, that the gravamen of the action was the making of that contract or that this was what the basis upon which it is insisted by the Board continuing effects within the six months became unlawful?

Mr. Bernard Dunau: The Board reasons that it is adjudicating the continuing effects within the six months and that it is entitled to rely upon the entry into the agreement more than six months before as the foundation for finding that the acts within the six months are unfair labor practices.

Justice Charles E. Whittaker: Thank you.

Mr. Bernard Dunau: And so, our question is whether the six-month period of limitations precludes reliance upon a barred unfair labor practice as the foundation for finding their conduct within the six-month period is an unfair labor practice.

Justice Charles E. Whittaker: Is it your position then, that the limitation is one of extinguishment or one of limitations?

Mr. Bernard Dunau: Our position is that once the six-month period has gone upon an unfair labor practice, liability for that unfair labor practice is extinguished and that you cannot taint later conduct in reliance upon an act which has been barred by limitations.

Now, what happened here?

In July of 1954, the company requested -- the Union requested the company to recognize it as the bargaining representative.

After discussions amongst the company officials, the company decided to extend recognition to the Union.

And so, on August 10, 1954, a collective bargaining agreement was entered into between the company and the Union.

The agreement contained a conventional recognition clause by which the Union was accredited as the bargaining representative.

It contained a conventional union shop clause by which employees were required to join the Union within 45 days of employment.

It contained a conventional check-off clause by which the employer was authorized upon the individual authorization of each employee to check-off union dues and fees and to remit them to the Union.

The agreement was, in all respects, conventional.

It contained the management functions clause.

It provided for hours in overtime.

It had a grievance procedure culminating an arbitration.

It provided for a five-cent per hour wage increase immediately and it deferred increase of five cents within four months.

However, the Board found that on August 10, 1954, when this agreement was entered into, when recognition was extended to the Union, the Union did not represent a majority of the 148 employees who were employed at the Reading plant of the company which was the unit covered by this agreement.

About a year later, a second agreement was entered into between the company and the Union.

The original plant, the Reading plant, it had been planned, would operate with about 150 to 200 employees.

The company expanded its operations.

It had about 350 employees.

It acquired a second plant about 12 miles away and a new agreement was entered into which enlarged the unit to cover both plants, the original Reading plant and the second Hillsdale plant.

There is no issue in this case about the propriety of this expansion.

That is conceded.

The unit properly covers both plants.

The agreement was altered in order to provide for seniority in the two plants as a single seniority area for the purposes of those employees who had in -- been employed at the Reading plant and would have been transferred to the Hillsdale plant to man that plant.

Justice Charles E. Whittaker: May I ask you.

Mr. Bernard Dunau: Yes, sir?

Justice Charles E. Whittaker: Is there any evidence of finding as to whether, at the time of the execution of the second contract, the Union represented the majority of employees?

Mr. Bernard Dunau: It is, I think, agreed that within the period of limitations, the Union at all times represented the majority of the employees.

There is no -- I cannot say that there is a finding audit.

The finding runs this way, that no majority which the Union secured subsequent to August 17, 1954 can be regarded as a valid -- no, majority which the Union secured subsequent to August 17, 1954 can be regarded as a valid majority because of the original entry into the agreement with a minority union.

But --

Justice Charles E. Whittaker: As I understand it then, all employees who had been hired subsequent to the original time track fell within this 45-day union shop provision.

Mr. Bernard Dunau: That's correct, sir.

Justice Charles E. Whittaker: And all did actually then, at least, paid dues.

Mr. Bernard Dunau: That's correct.

All --

Justice Charles E. Whittaker: I understand.

Mr. Bernard Dunau: -- all would be members of the Union so that, within the six-month period, there would be no question that all employees were union members.

Justice Charles E. Whittaker: Thank you.

Justice Felix Frankfurter: Is your position, Mr. Duanu, that whatever illegalities there may have been was completely exhausted or had exhausted itself before the six-month period began to run?

Is that the essence of your (Inaudible)?

Mr. Bernard Dunau: No, I will not say -- no, I'm not going to say that the effect of that conduct had exhausted itself.

The Board usually finds that the effect continues and may continue for an indeterminate period until an order is entered which redresses the law.

Justice Felix Frankfurter: So inanimate -- so inanimate effect in nature unrelated to what you mean it did?

Mr. Bernard Dunau: Well --

Justice Felix Frankfurter: What do you mean the effect continued?

Mr. Bernard Dunau: The theory is that once the will of the employees has been trammeled by unfair labor practices, we cannot assume that anything they do thereafter represents their untrammeled will and hence, that the effect, the -- the damage to their free choice remains uncured.

Justice Felix Frankfurter: That means what the employer did preceding the six months continued with his will or with his -- with his ascent and to that extent, it's collaboration within the six-month period.

Mr. Bernard Dunau: Well, I shall try to demonstrate that if -- in the course of the argument --

Justice Felix Frankfurter: Suppose that was so.

Suppose you'd agreed to my statement, would it be outside or inside the statute of limitations?

Mr. Bernard Dunau: Even if I were to agree that the effects of the initial unfair labor --

Justice Felix Frankfurter: Not the effects.

The effects not as a consequence of natural phenomenon, but through the conscious advantage taking of what preceded the six months continued with the employers' ascent or collaboration and to that extent, participation within the six months assumed.

And I think that is the situation.

Mr. Bernard Dunau: Well, if I can --

Justice Felix Frankfurter: There must be some human intervention.

I'm talking about human intervention --

Mr. Bernard Dunau: If I can freely --

Justice Felix Frankfurter: -- and not merely natural phenomenon.

Mr. Bernard Dunau: There was nothing subsequent to August 10, 1954 which could conceivably be regarded as an unfair labor practice.

There was no human intervention subsequent to that initial act which can be regarded as an unfair labor practice by the employer or the Union.

Justice Felix Frankfurter: Excluding taking advantage of what has been done before.

Mr. Bernard Dunau: Unless one says that continuing the agreement, in effect, executing and continuing a second agreement, in effect, in other words, unless one says that maintaining the bargaining relationship after its inception was, itself, an unfair labor practice within the six-month period, there is nothing in this case beyond the first act.

Justice Felix Frankfurter: The fruit of the tree doctrine, you say, wouldn't apply.

Mr. Bernard Dunau: This is what I have called the effect of the unfair labor practice, yes, sir.

Justice John M. Harlan: Turning it around the other way, for a minute, as I understand it, if the original agreement has not been infected as it was, there would have been no basis for an unfair labor practice charge.

Mr. Bernard Dunau: Not -- none whatsoever, Your Honor.

Justice John M. Harlan: On the other hand, what would be the basis of authority for the check-off of dues and compulsory membership except for the contract?

Mr. Bernard Dunau: The check-off on dues --

Justice John M. Harlan: Yes.

Justice Charles E. Whittaker: See -- let's take within the last -- the period preceding -- the six-month period preceding the institution of this -- this charge.

Mr. Bernard Dunau: Yes, sir.

Justice Charles E. Whittaker: We just -- the dues are being checked off.

Mr. Bernard Dunau: That's correct, sir.

Justice Charles E. Whittaker: And on what basis?

Mr. Bernard Dunau: The dues were being checked off pursuant to the individual authorization of each employee which was provided for in the agreement.

The amended --

Justice Charles E. Whittaker: Compelled by it, weren't they?

Mr. Bernard Dunau: No, sir.

The check-off was not compelled because the check-off simply authorized individual employees to permit the employer to check-off the dues.

Any employee who decided not to have his dues checked off could have that arrangement and pay the dues himself.

However --

Justice Felix Frankfurter: We do not --

Mr. Bernard Dunau: -- the payment of the dues, whether by check-off or directly to the Union, was contractually compelled.

Justice Charles E. Whittaker: And also, membership.

Mr. Bernard Dunau: Well, under the Taft-Hartley Act, when one says membership is compelled, one really means only that the payment of dues is compelled.

No other aspect of union membership can be enforced under the Taft-Hartley Act, so that union membership and dues payment are really the same thing under the statute.

Now, the -- a second agreement, as I have said, was entered into.

The agreement was to accommodate the acquisition of the two plants.

It provided for a wage increase of 31-cents, 15-cents the first year, 8-cents the second year, 8-cents a third year.

Other adjustments were made in the bargaining relationship to correspond to a year's experience under the contract.

Now, meanwhile, on June 10, 1955, the first unfair labor practice charge in this case was filed.

For our purposes, we can ignore all other unfair labor practice charges.

Based upon that charge, a complaint was issued and the Board found that the conduct within the six-month period maintaining the first agreement in effect and executing and maintaining the second agreement in effect for unfair labor practices and that it was free to rely upon the initial act of extending recognition and contracting with the Union which had occurred more than six months before to tank the conduct within the six-month period.

Now, let's test that first by the words of the statute.

If you count back six months from June 10, 1955, you get to December 10, 1954 and that's your six-month line.

Conduct forward of that is properly within -- may properly be adjudicated by the Board.

Conduct, in fact, of it is barred by limitations.

If you take the conduct forward, as I have said, there is not a semblance of an unfair labor practice.

All you have is the administration of an agreement valid on its face.

All you have is the execution and administration of a second agreement valid on its face.

So this completely blameless situation forward of December 10 has to be tainted, if it is to be tainted at all, by what occurred prior to December 10.

And what occurred prior to December 10 was more than six months before.

Now, what happened prior to December 10?

On August 10, 1954, the Union did not have a majority.

That, in itself, is not the relevant fact.

There is in every case a point of time when a union does not have a majority and is in the process of procuring one.

The relevant fact is that at a time when the Union did not have a majority, exclusive recognition was extended to it and this fact is relevant because it constitutes the unfair labor practice of assisting a union and abridging a free choice.

Now, what do we have then?

We have this unfair labor practice on August 10, 1954, more than six months before the charge was filed.

This was an unfair labor practice.

It was filed -- it was -- the charge was filed more than six months before its commission and Section 10 (b) could not state more plainly than it does.

That no complaint shall issue based upon any unfair labor practice occurring more than six months before the filing and service of the charge.

In this case, the complaint is based upon nothing but an unfair labor practice which occurred more than six months before the filing and the service of the charge.

Justice Felix Frankfurter: Mr. Dunau.

Mr. Bernard Dunau: Yes, sir?

Justice Felix Frankfurter: Would you be good enough to tell us what the theory, the philosophy, the reasoning matters of industrial relation?

What theory or consideration that lie behind the substantive rule whereby the Board is authorized to direct employer to undo influencing the formation of an organization and liberty and free choice.

What is the theory behind that?

Mr. Bernard Dunau: Well, the theory is that the statute contemplates that a bargaining relationship shall not be entered into except with a union which represents a majority of the employees and it means an uncoerced majority.

Justice Felix Frankfurter: And that -- but the basis of the order of the Board to undo that and not give it effect starts with the assumption that there's a momentum --

Mr. Bernard Dunau: That is correct, sir.

Justice Felix Frankfurter: -- which does the damage and continues its -- its illegal influence, isn't that right?

Mr. Bernard Dunau: That is correct, sir.

It is the --

Justice Felix Frankfurter: Now --

Mr. Bernard Dunau: -- the -- the theory is that the damage occurred, the -- the trammeling of a free choice continues until something happens.

Justice Felix Frankfurter: The employer must take affirmative steps to undo, is that right?

Mr. Bernard Dunau: According to the Board, unless the employer withholds and withdraws recognition, at least until the Board certifies the Union after an election, there is no basis for saying --

Justice Felix Frankfurter: Then why does the -- why does that consideration or that thinking not applied to this kind of situation?

Mr. Bernard Dunau: Because the basis for the notion that the free will of the employees has been trammeled is -- requires a finding that an unfair labor practice was committed.

In this case, it requires the finding that the company and the Union entered into a bargaining relationship when the Union had no majority --

Justice Felix Frankfurter: And --

Mr. Bernard Dunau: -- if the Board is not entitled to make that finding because limitations have run upon that act.

Justice Felix Frankfurter: But that's -- that's what -- your statement means that the Board is, as a -- by rule of law, prevented from recognizing a fact.

Is that right?

Mr. Bernard Dunau: It is prevented from recognizing the consequence of an unfair labor practice by a statute of limitations which extinguishes the liability for it.

Justice Felix Frankfurter: Well, that's the -- that's the thing that we have to decide.

Mr. Bernard Dunau: Well, neither can we decide it by saying that because the consequence of an unfair labor practice continues with the -- within the six-month period that, for that reason, we can look to the Act which precedes the six-month period to determine the cause of that kinds of question.

Justice Felix Frankfurter: And if I was as simpleminded as all that.

Mr. Bernard Dunau: I'm sure you are not, sir.

Justice Felix Frankfurter: I'm not suggesting -- I was asking why the consideration that leads to that aggressive, if you please -- if I please, rather aggressive power authorized to the Board, compelling the employer to take affirmative action on the assumption that something that took place long ago persisted and therefore, it's still operating.

That's a fact.

I mean, the -- the law in that -- I think is derived from the experience in the industrial world.

Is that right?

Mr. Bernard Dunau: Yes, sir.

Justice Felix Frankfurter: Would it be at trial?

Mr. Bernard Dunau: That is correct.

Justice Felix Frankfurter: Now -- so that's what I call a fact --

Mr. Bernard Dunau: Yes, sir.

Justice Felix Frankfurter: -- fact of industry.

I want to know why that type of industry is outlawed by a rule of -- by -- by the construction you give to the statute.

Mr. Bernard Dunau: Well, of course, that --

Justice Felix Frankfurter: And that's why I say you're saying that something that in fact operates within the six months may not be considered because that's the way the statute of limitations can be construed.

Mr. Bernard Dunau: That, of course, was --

Justice Felix Frankfurter: That's what it gets down to.

Mr. Bernard Dunau: It's the burden of my whole argument.

Justice Felix Frankfurter: All right.

Mr. Bernard Dunau: That you cannot look to the effect -- well, as I said, it's the burden of my --

Justice Felix Frankfurter: You call it the effect and I call it a persisting fact.

Mr. Bernard Dunau: And -- and all -- and whether we call it one or the other, what we still have to get back to in the end is whether this 10-month -- this six-month period of limitations bars the Board from finding the initial fact.

And if it bars it, then it has no basis for saying that there's anything which continues that there is any operative fact within the six-month period.

Justice Felix Frankfurter: Well, the -- I think the difference in our statements has gone to this.

You -- you say whether the -- whether it can consider an unfair labor practice that preceded the six months.

And my question is why does the more realistic way of looking at things, that it didn't precede but continues?

Mr. Bernard Dunau: Well, and I shall try to demonstrate that in the course --

Justice Felix Frankfurter: All right.

Mr. Bernard Dunau: -- of the argument, sir.

Justice Felix Frankfurter: I think the plain meaning of Section 10 (b) bars the adjudication of this complaint for, as I have said, there is nothing in this complaint but an unfair labor practice preceding the six-month period.

And it seems to us that the purpose of the limitations period requires a reading in accordance with its plain meaning.

Now, the general six-month period of limitations was newly enacted in 1947, except for an important area which I will come to presently.

There were no limitations in effect under the original Wagner Act.

Now, the enactment of limitations were sharply opposed and criticized because it would permit unfair labor practices to go un-redressed, particularly in that six months was the shortest statute of limitations known to the law.

But the view prevailed in Congress that there must be a limitation as to time and that six months is time enough within which to bring the matter to the attention of the Board.

Well, in this case, it wasn't brought to the attention of the Board until 10 months later.

That was four months too long.

That barred the Act.

That is what a statute of limitations means.

If, in this case, 10 months is not too long, then 20 months is not too long and 30 months is not too long and 40 months is not too long.

If, in this case, one can upset a bargaining relationship after the second agreement, there is no reason why it cannot be upset after the third agreement, after the fourth agreement and after the fifth agreement.

And I am --

Justice Felix Frankfurter: What time -- time period had the Board acted on with reference to the substantive provision of law in which you and I agree --

Mr. Bernard Dunau: There --

Justice Felix Frankfurter: -- namely that the momentum must be affirmatively start.

Mr. Bernard Dunau: No time limit whatsoever, Your Honor.

Justice Felix Frankfurter: Even for years?

Mr. Bernard Dunau: For years, Your Honor, and I will cite a case which just was decided relatively recently which will illustrate precisely what I mean.

There is no time limit unless the six months provides that time limit.

A charge was filed in a case called Lively Photos, Inc. three years and eight months after the agreement, the first agreement was entered into.

The basis for the charge in that case, as in this case, was that at the time the agreement was first entered into, the Union had no majority and that was all there was in that case and that's all there is in this case.

Based upon that charge filed three years and eight months after the event, the Board almost five years after the first agreement was entered into, found the fact to be that the Union had no majority, entered an order severing the bargaining relationship.

So in that case, almost five years after the first agreement was entered into, the Board still said the momentum persisted, and this was upon the basis of a charged file three years and eight months after the first contract was entered into.

Justice Felix Frankfurter: Is this a board case or a board case?

Mr. Bernard Dunau: This was a board case, Your Honor, before the National Labor Relations Board.

It appears on pages 32 to 33 of our brief.

Now, this is logical because if you can pierce the six-month limitation by four months, there's no reason why you cannot pierce it by three years and two months.

Either there is a six-month line or there is no line.

Chief Justice Earl Warren: How long does that policy prevails, Mr. Dunau?

Mr. Bernard Dunau: I know of no case, Your Honor, that has been adjudicated in which the Board has ever said that the mere lapse of time alone suffice that this fail any unfair labor practices.

Now, it is possible, of course, that in the regional offices themselves, when charges were filed, perhaps complaints are not issued if too long a period of time has elapsed, but that must be a very long period of time, indeed, because if we judge from a recent -- the recent Lively Photos case, it's five years at least, and the Board still says the momentum continues.

Chief Justice Earl Warren: I mean, where is the first -- when was the first case that they pierced this statute of limitation?

Mr. Bernard Dunau: Oh, in a bargaining situation, the case before the Court is the first one in which they pierced the statute of the -- the six-month period.

Justice Felix Frankfurter: Well, the others -- of course, there are different kinds of unfair labor practices, if you fire an employee in a discriminatory fashion --

Mr. Bernard Dunau: Well --

Justice Felix Frankfurter: -- you've got a very different situation.

It's a much more isolated phenomenon, isn't it?

So you said it out of work.

Mr. Bernard Dunau: I would --

Justice Felix Frankfurter: You said it out of work.

Mr. Bernard Dunau: -- I would hesitate to say, for example, that if in a unit of 50, the employer were to fire 5 or 10 per union activity, that the impact of the discharge of those 5 or 10 lasted less long but it was less drastic than a bargaining relationship entered into less than the majority.

Justice Felix Frankfurter: I would hesitate to overrule the Board in making the finding to that effect.

Mr. Bernard Dunau: And I think the Board would, if I recall its decisions correctly, place considerable more emphasis upon the -- a discriminatory discharge as having a momentum than the other way around.

I do not --

Justice Felix Frankfurter: I didn't mean -- I didn't mean as to recognizing the Union but as to the effect on the Union, but as to reinstating the employee on -- on his complaint after a six-month period.

Mr. Bernard Dunau: The rule is that if he has not filed his charge within six months of his dismissal, that is barred.

Justice Felix Frankfurter: That -- and the Board has so --

Mr. Bernard Dunau: The Board has so held --

Justice Felix Frankfurter: So that there is a -- that's precisely the -- I didn't know that's --

Mr. Bernard Dunau: Yes, sir.

Justice Felix Frankfurter: -- the ruling, but I had assumed that would be so.

The difference between an isolated, enclosed --

Mr. Bernard Dunau: No, sir --

Justice Felix Frankfurter: -- situation such as firing John Smith and having him sue non -- to bring -- bring proceedings then on plaintiff.

Mr. Bernard Dunau: No, it can't be regarded -- if -- that is not the explanation, Your Honor, because the Board has also held that the six-month period of limitations is applicable in this type of situation.

Assume a union is company-dominated, that is the employer has assisted it by such unfair labor practices that the Board says this is the company's own creature.

But all the acts which prove domination occur more than six months before the charges filed.

The Board holds that you cannot adjudicate the company dominated origin of that union if the charge was filed more than six months after the events.

Now, certainly, the momentum of a company-dominated labor organization is at least as great as the momentum that it comes from a bargaining agreement with a labor organization which is not at all company-dominated.

Justice Felix Frankfurter: What is the -- what is the distinction they make through the District Court?

Mr. Bernard Dunau: I don't understand the distinction.

Justice Felix Frankfurter: Well, don't they --

Mr. Bernard Dunau: They do not -- they do not explicate a distinction, Your Honor.

Chief Justice Earl Warren: When was that case decided, Mr. Dunau?

Mr. Bernard Dunau: The one I've just --

Chief Justice Earl Warren: The one you just told us about, yes.

Mr. Bernard Dunau: Those are given in our briefs at pages 52 to 53.

Judging from the volumes of the Boards, they began in 88 NLRB which would have been shortly after the 1947 amendments.

I have a case which is 108 which would be around 52 or 53.

Justice Felix Frankfurter: Where is that page, Mr. Dunau?

Mr. Bernard Dunau: This is on pages 52 to 53 of our brief, Your Honor.

And there are other situations which we have also indicated where the effect of the conduct or the consequence of the unfair labor practice as a continuing one.

This is the only case and the only situation which the -- I know of that the Board says, because the relationship is continuing, the six-month period does not run.

Now, if that is true, as I have said, not only is there never a period of time for which repose applies to a bargaining relationship.

It is impossible in that kind of a situation to fulfill the purpose of the statute of limitations.

If it never runs, then, as the House Report put it, what it was after, what the Congress was after was to obviate the evil of delayed litigation.

“After records have been destroyed, witnesses have gone elsewhere and recollections of the events in question had become dim and confused.”

This is the conventional pragmatic justification for a statute of limitations.

If it never runs, then you always have and increasingly have the risk of litigation upon the basis of lost evidence, but that isn't even the most fundamental consideration because more fundamental than the pragmatic situation of lost evidence is the principle of repose itself.

The idea is that if a period of time has elapsed without a relevant charge or complaint or proceeding being instituted, the status quo is stabilized.

He who is -- thinks he suffers a wrong ought to be diligent to enforce it.

He who thinks he has a right ought to be -- he who suffers a wrong ought not to be forever under the anxiety of a lawsuit and disruption of a status quo, and he who thinks he has a right ought to be diligent to enforce it.

Now, this was a dominating purpose of Congress in this situation because the six-month period itself, by its very shortness, indicates that the dominating purpose of Congress was to bring surcease to these controversies to quiet them if they weren't made the subject of a charge within six months.

Well, you can never quiet a controversy.

You can never validate a bargaining relationship if though more than six months has passed since its inception and though the only thing that is wrong with it is a misstep in its origin, it is nevertheless perpetually vulnerable.

This is incompatible with any concept of repose that a statute of limitations is supposed to bring about.

Justice Hugo L. Black: How long did -- how long was this contract supposed to exist?

Mr. Bernard Dunau: The first agreement had a two-year term.

After the first year of the term, it then had -- the second agreement was entered into for a three-year term, and that's where the record stops.

Justice Hugo L. Black: Does the Board's holding mean that if it's gone in entire two years, it could have found it an unfair labor practice six months after its expiration?

Mr. Bernard Dunau: I would suppose that the Board would say -- well, I know what -- the Board says the six-month never -- period never runs so long as the initial agreement or any successor agreement remains in effect.

So, so long as you have a continuing bargaining relationship, the six-month period never runs.

Now, presumably, if there were a --

Justice Hugo L. Black: Even if -- even if you make one agreement and then you meet and make another?

Mr. Bernard Dunau: That is not relevant under the --

Justice Hugo L. Black: You make another, it has to be -- they could be found guilty for unfair labor practice within the time after six months from the last day the contract was in effect?

Mr. Bernard Dunau: Yes, sir.

That is -- so long as there is a second agreement which succeeds the first agreement, yes, sir.

So long as there is any bargaining relationship in existence, the Board will continue to hold that there is no limitations which runs on that relationship.

Justice Hugo L. Black: What was the object of this six months limitation?

Does the record show what Congress had in mind in that?

Mr. Bernard Dunau: Congress had in mind, as it said, we give the employee or anyone else who feels that an unfair labor practice has been committed six months within which to file the charge.

If the charge is not filed within that period, that puts an end to the complaint, the practice, the wrong about which the charge of -- would bring to the attention of the Board.

It was a conventional statute of limitations that Congress was enacting and it made six months the period in which --

Justice Hugo L. Black: How far back does this repayment order extend in this case?

Mr. Bernard Dunau: The Board begins the repayment order six months preceding the filing of the charge.

It recognizes the working of the statute of limitations to the extent that it will not require the refund of moneys more than six months before the filing of the charge.

But its seize and desist orders and its affirmative orders in other respects go all the way back to the beginning and they severe the bargaining relationship exclusively upon the basis of the Act which occurred more than six month before the charge was filed.

Now, actually, Congress has left very little to the imagination in this situation because the Senate Report which accompanied Section -- which explains Section 10 (b), and this is on page 36 of our brief, said this, “The Board itself, by adopting a Doctrine of Latches, has, to some extent, discouraged adulatory filing of charges and a rider to the current appropriations bill which it -- which if this amendment was adopted would no longer be necessary, contains a three-month period of limitations with respect to certain kinds of unfair labor practices.

Now, the rider to the current appropriations bill which the Senate -- to which the Senate Report referred said this in part, “No part of the funds appropriated in this title shall be used in any way in connection with a complaint case arising over an agreement or a renewal thereof between management and labor which has been in existence for three months or longer without a complaint being filed by an employee.”

So that the Senate Report referred to the appropriations bill wrier which explicitly said, “If three months go by without a charge filed, you cannot prosecute a complaint over that agreement.”

Now, this was not new.

This limitations rider or one substantially like it had been in each Board appropriation act since 1943.

So that for four years preceding the -- the adoption of a general statute of limitations in 1947, the riders to the Board's Appropriations Act had barred the Board from using funds to prosecute a complaint over an agreement if o charge had been filed within three months of the agreement and other conditions of the riders were met.

Justice Hugo L. Black: Is it the position of the Board that this does not arise over the agreement or the renewal of agreement which arises on the maintenance of the agreement from time to time, is that it?

Mr. Bernard Dunau: No, sir, they don't try to explain away this history in this way, and I -- I just don't know how they explained it away.

As I understand it, they say something like this, “We -- a -- the six months does not run with respect to an agreement which is invalid on its face.”

Now, this is a separate situation from the one we have here, which is an agreement valid on its face but invalid because there was something wrong with its inception.

And then, they say, under the limitations riders, the -- the period would have run even as to an agreement valid on its face and so, they conclude the limitations riders had broader scope than Section 10 (b) as enacted and therefore, we cannot look to the limitations riders as a guide to what Congress meant.

To this -- to me, this makes little sense because the one thing that is certain about this limitations rider is that it was initially adopted in 1943 to meet just the situation of agreements valid on their face which were entered into with a union which did not have majority support.

If --

Justice Hugo L. Black: Where is that distinction drawn?

You referred to it plainly.

Mr. Bernard Dunau: Between an agreement valid on its --

Justice Hugo L. Black: Valid on its face and one that's not valid on its face.

Mr. Bernard Dunau: Well, that is --

Justice Hugo L. Black: Is that drawn in the Act or is that --

Mr. Bernard Dunau: No, sir, that is --

Justice Hugo L. Black: (Voice Overlap) --

Mr. Bernard Dunau: -- drawn by interpretation from the statute.

The theory is, and we do not contest this, that if you have an agreement invalid on its face, you do not need anything more than proof of that agreement to show an unfair labor practice.

You do not have to look to any events more than six months refiling of a charge.All you have to do is introduce the agreement into evidence.

It is a fact existing today and in effect today and therefore, you -- the limitations have not begun to run on it.

Now, the only --

Justice Potter Stewart: It would be a closed-shop agreement.

Mr. Bernard Dunau: A closed-shop agreement, yes, sir.

It would be one invalid on its face.

All you have to do is you introduce the agreement and you've proven your case and it is not a reliance upon an unfair labor practice occurring more than six months before.

It is in existing today unfair labor practice proved by the existence of the agreement in effect today and on its face today, it is an unfair labor practice.

Justice Potter Stewart: No matter when the -- that agreement might have been (Voice Overlap) --

Mr. Bernard Dunau: It doesn't matter when the agreement was entered into.

And the only relevance of the notion of continuing violation in such a situation is to refute the defense that because the agreement was executed more than six months before, its continuance in existence is barred by limitations.

Justice Hugo L. Black: I suppose the agreement --

Mr. Bernard Dunau: Yes, sir.

Justice Hugo L. Black: -- provided that there'll be discrimination on account of race or color or religion.

Mr. Bernard Dunau: Well --

Justice Hugo L. Black: Is that the type of thing you're talking about?

Mr. Bernard Dunau: Well, this would be an agreement invalid on its face --

Justice Hugo L. Black: Invalid on its face.

That's what I'm talking about.

Mr. Bernard Dunau: But -- I hasten to add, not an agreement which would be within the competence of the Board to adjudicate since racial discrimination is not the sort of thing that the Board is concerned with.

The conventional invalid on its face agreement with which we deal here is one which provides for union security in excess of the maximum permissible under the statute which would be, as Mr. Justice Stewart suggested, one which had a closed-shop provision or --

Justice Hugo L. Black: You mean the kind -- what I suggested would be invalid on its face?

Mr. Bernard Dunau: Oh, it would be invalid on its face.

All I'm suggesting is that though it's invalid on its face, it's not the kind of agreement which the Board is concerned with because it doesn't redress racial discrimination agreements.

It's concerned only with union discrimination agreements.

Justice Charles E. Whittaker: Mr. Dunau, may I ask you (Inaudible)

Mr. Bernard Dunau: No, sir, it doesn't take a written contract.

Justice Charles E. Whittaker: Now, then suppose this conduct was obviously (Inaudible) as to whether that would be a daily violation of law?

Mr. Bernard Dunau: I still think it's the same situation because whether it's the written contract or whether it's a practice which has -- and being without a written contract, you still have to go back to the inception of the relationship to show that though, let us say, exclusive recognition was granted without a written contract, nevertheless, the only thing wrong with it was that it was the relationship was begun with a union which did not have a majority, so that the writteness or the oralness of the arrangement is not material to what we conceive as the basic factor here, namely, that you still have to go back to a barred unfair labor practice in order to set in motion any kind of a view of conduct being invalid within the six-month period.

Justice Charles E. Whittaker: We can't conclude that this very conduct, under such an illegal oral understanding, was in view of that.

Mr. Bernard Dunau: Well, again, it's a -- it depends upon -- let me -- I think this is perhaps the argument which the Court of Appeals below was suggesting, although it didn't put it in terms of the written or oral arrangement and, I think -- I might just as well illustrate what I think is very -- what is just lifting one's self by one's own bootstraps.

The Court of Appeals said that dues payment and union membership was -- were contractually compelled.

And this contractual compulsion of dues payment and union membership occurred within the six-month period.

These were unfair labor practices and violations, and because they were unfair practices and violations, the Board was permitted to go behind this six-month period.

But what the Court of Appeals called unfair practices and violations are the conventional manifestations of the administration of any union security agreement.

Every union security agreement contractually compels union membership and the payment of dues.

That is its function.

That is precisely what is permitted to a union security agreement.

Well, you can't call these acts unfair practices and violations in order to justify breaching the six-month period because your justification, legal justification for calling them unfair practices or violations only occurs after you have already breached the period.

In other words, you cannot use the barred unfair labor practice as your reason for saying “I -- therefore, I can look at it.”

That's just --

Justice Hugo L. Black: Let me try, and I think you could help me with your point the -- to the exact wording of the Act --

Mr. Bernard Dunau: Yes, sir.

Justice Hugo L. Black: -- in which one would we have to rely to determine whether when the contract was made, it's an unfair labor practice or whether there's a daily unfair labor practice.

Everyday, contract stays in existence, it was originally unfair.

Mr. Bernard Dunau: I could not point to anything in the words of the statute, Your Honor.

Justice Hugo L. Black: Is there anything in the words of the statute which shows the unfair -- that it's an unfair labor practice to make the contract?

Mr. Bernard Dunau: Well, the -- it's reasoned in this fashion.

Let us take the Section 8 (a) (2) violation.

That makes it an unfair labor practice for an employer to assist a labor organization.

Section 8 (a) (1) makes it an unfair labor practice to interfere with, restrain, or coerce employees in the exercise of their right to choose a bargaining representative.

The theory is that when you enter into an exclusive bargaining relationship with a union which does not have a majority, you have assisted that labor organization and you have interfered with and restrained and coerced the employees in the exercise of a free choice.

There is nothing more specific in the statute than that.

Now, as I have said, the limitations provision seem to us -- the riders to the current appropriations bill or the appropriation bills seem to us to be decisive that there is an doubt because under those riders, there was just no question.

This was the Board's interpretation and application of the riders.

This is what the -- was plain on the floor of the Congress in both Houses when those riders were enacted.

If three months went by without a complaint being -- without a charge being filed, that terminated liability or -- no complaint could issue based upon that agreement.

Now, what the Board has to be saying, therefore, is that when Congress enacted a six-month period of limitations applicable to all unfair labor practices, it was, at the same time, eliminating the already existing applicability of limitations to agreements.

We do not think this is a possible interpretation.

Justice Potter Stewart: The existing limitation has found the appropriation.

And once the Congress enacted the general six-month period of limitations, it discontinued the appropriations riders -- the riders in the Board's Appropriations Act and this was consistent with the report -- the explanation in the Senate Report.

When we had a six-month period of limitations, the riders would no longer be necessary.

Well, under the Board's interpretation, the riders continued to be necessary.

Now, how does the Board get there?

It gets there, first, by saying Section 10 (b) is not a rule of evidence.

It is a statute of limitations, and we agree.

It also says Section 10 (b) does not preclude receipt in evidence of events which transpired before the six-month period, and we agree.

It then says, because we can receive in evidence events which occurred more than six months before, we are, therefore, free to adjudicate this conduct within the six-month period exclusively upon the basis of the barred unfair labor practice, and that's where we part company because the receipt in evidence of events which occurred more than six months before has always been subject to the important limitation that you can receive such evidence for background purposes only but you cannot give that evidence independent and controlling significance to find that unfair labor practice within the six months.

Well, here, obviously, the initial unfair labor practice was not received as background evidence.

It doesn't even give it sufficient scope to say it was received.

It was given independent and controlling significance.

It was given exclusive significance but, for that unfair labor practice, there's nothing within the six-month period.

And so, upon the basis of what the Board and the Courts of Appeals have themselves said with respect to receipt in evidence or antedating evidence, we agree it can come in for background.

It didn't come in, in this case, for background.

It came in as the exclusive basis for adjudicating their right.

Now, the further basis upon which the Board says that the six-month period can be breached is that this is a continuing violation.

Well, I, in part, explain the concept of continuing violation that is we can adjudicate a complaint valid on its -- invalid on its face.

Therefore, there's -- we can adjudicate with one valid on its face because there's no difference between the two.

We think there's a world of difference between the two because with one which is invalid on its face, you do not have to go to any events six months before the charge.

With one valid on its face, you do and, because you do, we think six -- the Section 10 (b) operates.

I've also explained why the distinction drawn by the Court of Appeals, namely, that these are unfair labor practices or violations within the six-month period will not wash.

The other explanation that we now have, and this is the third variation of the concept of continuing violation is the one in the Board brief.

The Board brief says that we agree that execution of the agreement is barred by limitations but continuance or enforcement of the agreement is not.

The distinction, as I understand it, is that the execution of the agreement is a completed and consummated act when it takes place, therefore, limitations run as to it.

The enforcement is not a complete act.

It is a continuing act and therefore, limitations do not run.

What it seem -- it seems to us that what this contention does is to separate the consequence of the unfair labor practice from the unfair labor practice.

For the underlying unfair labor practice is rendering assistance to a union by recognizing and contracting with it when it does not half a majority.

The consequence of that unfair labor practice is to invalidate both the -- invalidate both the execution of the agreement and the enforcement of the agreement to say that the limitations run as to the execution but not as to the enforcement.

It's to have your period of limitations run from the result of the wrong, the damage, the consequence.

It seems to us that a limitations period must run from the wrong and not from the result.

If one is hit by a negligently driven car, your limitations run from the blow.

They do not run from the damages of -- disappearance of the damages as a result of the blow.

If one has a permanent injury, it surely does not mean that limitations never run during the light of that dictum.

The same is true, it seems to us, of an unfair labor practice.

The consequences of an unfair labor practice linger after its commission.

Now, it seems to us that the answer to the Labor Board's argument in its brief was stated by Judge Simons in a non-labor board case.

He said, “If this sort of an argument prevails, if this were not true, that is, if limitations did not run from the wrong, if this were not true, in every case where damages resulting from a long -- from a wrongful act are, in their nature, continuing, there would be no limitation upon the right of action and the beneficent purpose of the statute to put a period to the right to sue would be defeated.

Now, we didn't cite that case.

If the Court would like to see it, it's 73 F.2d. 333, 335.

It seems to us that when all is said and done, what -- what -- one gets down to is that under the Board's view of Section 10 (b), limitations never run on a bargaining relationship once there is a misstep in its origin.

Justice John M. Harlan: Could you give me the citation of that?

Mr. Bernard Dunau: Yes, sir.

It's 73 F.2d. 333 and the quotation is at 335.

Justice Hugo L. Black: Is that in your brief?

Mr. Bernard Dunau: No, sir.

That is not in our brief.

Justice Hugo L. Black: Could you give it again?

Mr. Bernard Dunau: 73 F.2d. 333 at 335.

It seems to us that no interpretation of a limitations provision which results in a situation where it never runs can possibly be a valid interpretation of a limitations provision.

Now, if we are right as to this --

Justice Felix Frankfurter: Well, if you --

Mr. Bernard Dunau: Yes, sir.

Justice Felix Frankfurter: It may stop running or it -- it may begin to run, as it were, because the force of the compulsion, it's a totally different question, may have ceased to operate so that when the employer says “I'll give you a job, provided you join a union,” which union has come into being not for free choice and the involuntariness of the organizations still persist, it isn't merely a consequence that run but it is the position of the employer saying “I won't give you a job unless you join this congenitally illegal enterprise.”

Mr. Bernard Dunau: Well, Your Honor, if that were sound, then the Board was wrong when it said, as to company-dominated labor organizations, that so long as the charge was not filed more than six -- within the six months of the acts which created the dominative character, that dominated origin of the organization can no longer be adjudicated because --

Justice Felix Frankfurter: I don't mind saying that's the most impressive part of your argument and I'm waiting to hear before you explain that.

Mr. Bernard Dunau: Because whether -- it's not simply, for example, collecting dues on behalf of an organization which is assisted.

Any act by a labor organization in its role as exclusive representative is a wrongful act if, in fact, that labor organization has no right to operate as an exclusive representative.

Justice Felix Frankfurter: And that no right to operate may persist so it origin merely -- may merely persist although its origin may be outside of the statute --

Mr. Bernard Dunau: It may --

Justice Felix Frankfurter: -- precede the six months.

Mr. Bernard Dunau: It may indeed persist, and our point is --

Justice Felix Frankfurter: And therefore, if it persists and the employer insist upon the subjection of that illegality to its employment policy, then you haven't got just a natural operation of nature but you've got the in dimensionally human being say “I won't give you this job unless you do something” which, by your answer, has obtained.

Mr. Bernard Dunau: Well, I repeat what I have already said.One has no right to say that any act in effectuation of that agreement or in effectuation of the bargaining relationship is a wrongful act unless one has a right, first, to determine whether the relationship was wrongly conceived in the first instance.

If one has no right to determine the relationship or its inception in the first instance, one has no basis for saying that the operative human intervention within the six-month period was an unfair labor practice or was not an unfair labor practice.

It seems to us that no matter which way you cut this baby, you still come back to the primary consideration that you have to adjudicate an unfair labor practice outside the period and you still come back to what I think is what is, for me, the conclusive factor that on this reading of a statute of limitations, it never runs and I cannot conceive that that is a sound reading of a statute of limitations.

Now, if we are right as to this, that ends the case.

If we are wrong, we reach the question of remedy which I fear I shall have no time at all to discuss.

The question of remedy, however, is an extremely important one.

The Board says that when the Board ordered the company and Union, jointly and severely, to refund to the employees the initiation fees and dues which had been paid by them to the -- which have been checked off by the employer pursuant to an individual check-off authorization.

The Board's theory for saying that the money should be refunded is that when employees pay money pursuant to a union security agreement, they are paying it voluntarily.

But for the union security agreement, they would not have paid the money, and since the involuntarism is rooted in an invalid agreement, we have a right to require the refund of the dues and the fees.

Now, there was a time when Congress acted on this assumption.

There was a time when Congress thought that dues payment pursuant to a union security agreement was coerced payment.

And so, in 1947, it provided that no union or employer could enter into a union security agreement unless an election had first been conducted amongst the employees to determine whether they wish to authorize entry into that agreement.

About four years later, Congress repealed that provision.

It is now permissible for an employer and a union to enter into a union security agreement without an election.

And the reason, the reason for the repeal was simple.

It was the experience which had been found by Congress during the intervening four years in which such elections were held.

Over 46,000 such elections were held.

Over five million employees were polled.

In 97% of the elections, the -- the employees authorized the Unions to enter into union security agreements and the margins of victory were just as impressive.

They ranged, in one year, from 87%, to another year, 94% and so, Congress was persuaded that employees do not involuntarily pay dues pursuant to the terms of a union security agreement, that they do not involuntarily pay them, as was demonstrated by their overwhelming authorization of a contractual obligation to pay.

And so, it seems to us that the premise upon which the Labor Board acts is fundamentally false and that what it is really doing is not remedying the wrong.

It is attempting to punish its commission.

It is attempting to coerce compliance by a staggering financial responsibility.

And I just want to emphasize this by telling the Court of a case which the Board decided on December 28, 1959, which appears at 45 Labor Relations Reference Manual 1223.

The Board has finally --

Unknown Speaker: (Inaudible)

Mr. Bernard Dunau: 45 L.R.R.M. 1223.

It's Lummus Corporation, L-U-M-M-U-S.

The Board has finally said what has been painfully obvious for a long time, that its current use for the refund order is not to remedy a wrong but to prevent its commission, to deter its commission.

It says this.

“Finally, we believe that a mere seize and desist order will have little impact in an industry where illegal hiring practices are widespread.

The reimbursement remedy more properly effectuates the purposes of the Act because it provides not only a deterrent to future violations but an incentive to future compliance.”

What the Board is, therefore, doing is using a money remedy as a fine.

It says, “If you do not comply, you will be fined,” and there is no necessary relationship at all between -- between the wrong for which the refund is ordered and the reason that the Board is ordering the refund.

Chief Justice Earl Warren: Mr. Come.

Argument of Norton J. Come

Mr. Norton J. Come: May it please the Court.

The facts here show that in August of 1954, at a time when the Union did not represent a single employee and indeed, had made no effort to organize them, the company and the Union entered into a collective bargaining contract.

It compelled the employees as a condition of maintaining employment to join the Union within 45 days and to remain members in good standing.

And to implement the latter provision, it provided that upon receipt of a signed authorization of the employee, the company would check off each month the initiation fees and dues payable to the Union.

Justice John M. Harlan: May I interrupt you there for a moment?

Mr. Norton J. Come: Yes, Your Honor.

Justice John M. Harlan: Assuming this agreement contained no security at all and entered into (Inaudible) would that be an unfair labor practice?

Justice John M. Harlan: Now, assuming again you waited more than six months and you have brought the unfair labor practice charge that you brought here on such a (Inaudible) on your theory?

Mr. Norton J. Come: I think, under the Board's theory, you could have, Your Honor.

Justice John M. Harlan: You could have.

Mr. Norton J. Come: Yes, sir.

Chief Justice Earl Warren: Is this a new theory or is this a principle the Board has acted on through the years?

Mr. Norton J. Come: I do not think that it is a new theory, Mr. Chief Justice, because from the beginning, the enactment of 10 (b), the Board has taken the view that it is a statute of limitations and not a rule of evidence.

The effect of it is to bar a liability for an unfair labor practice committed in the past but not to preclude the Board from looking at relevant evidence in the past for the purpose of shedding light on conduct that is occurring within the limitations period.

Indeed, quite early in the Board's experience with 10 (b), you had a number of cases where the union security clause in the contract was defective, in that, instead of providing for 30 days within which to become a union member, it required that you had to become a union member immediately or some lesser period.

These contracts were entered into outside the six months period but they continued to be enforced within the limitations period.

The Board took the position and every Court of Appeals that has considered the question sustained the Board in the view that since the contract continued to be enforced, the statute of limitations in 10 (b) had not even begun to operate.

Now, the -- it is true that in those cases, the illegality of the union security clause was apparent on the face of the contract, but that was not the rationale on which the Court sustained the Board.

The rationale was that you had a continuing unfair labor practice going on so long as the contract continued to be enforced for the simple reason that it has been well-established, at least in the Courts of Appeals, that where you have a contract that compels union membership as a condition of employment, you have a violation of the Act not only at the time that you execute the contract.

The reason for that is that you are forcing the employees to risk discharge if they do not join the Union but thereafter, each time that you enforced the contract, enforce employees to pay dues under that contract or discharge them for failure to do so, you are further invading their statutory rights.

Now, the closest case --

Justice Hugo L. Black: How many violations then do you get out of the violations that comes from making contract as illegal?

How many violations would be every day, every week, every month or what?

Mr. Norton J. Come: Every time that you enforce the contract, Your Honor.

Justice Felix Frankfurter: It's good occasionally to go back to the terms of a statute in which we are concerned.

The statute says based upon any unfair labor practice occurring.

Mr. Norton J. Come: Yes, Your Honor.

Justice Felix Frankfurter: Occurring.

And I take it your task is to convince this Court that things occurred during the six months -- within the six months not merely that it's interpreting what did occur, you can draw on what preceded the six months.

Now, what occurred -- the mere fact that the contract runs isn't an occurrence and that's it, is it?

The mere fact that the contract subsists, could you call that an occurrence in answer to Justice Black's question?

You indicated yes, the mere fact that the contract prevailed.

I wouldn't call that an -- something occurring.

Justice Hugo L. Black: Do you accept that?

Mr. Norton J. Come: Well, I think the fact that the contract continues in effect, it does exert a continuing coercion on the employees but you certainly --

Justice Hugo L. Black: What about every day when they collect dues because I have --

Mr. Norton J. Come: But you certainly do not have anything as dramatic or tangible as when you are collecting dues under this contract each month.

And what occurs there is -- is certainly not in the realm of speculation.

Justice Hugo L. Black: It's a violation.

Mr. Norton J. Come: That is correct, Your Honor.

Each month, these employees had to pay dues to the Union.

If they didn't pay dues to the Union, they would be discharged for that.

Justice Charles E. Whittaker: Now, is it true that each day the time tracks pose longer than it exists, does it not operate?

Mr. Norton J. Come: Well, I think that it -- it does, Your Honor, but I don't think that we have to reach that in this case because you have the union security clause here which is certainly operating in a very immediate sense each month when dues are paid.

Employees could have been discharged under this contract.

The mere fact that under -- on this record, non-order doesn't change the realities of the situation because, as I understand petitioners' position, it would be the same.

We couldn't even reach those discharges.

Justice Felix Frankfurter: Now, if the contract subsisted, it's still there, a piece of paper, no modification, no repudiation, no nothing, nothing's going up but the employer didn't collect the check-off and nothing was done about it, it was foregone, you wouldn't say that there was something of occurring then, would you?

Mr. Norton J. Come: I think it is possible to say that there would not be and I think that that is the rationale of the Board's decisions in the company union cases that Mr. Dunau has cited.

Since they have occurred a number of years before this decision, I don't know to what extent the Board continues to adhere to them but assuming that they do represent the Board's position, I think they are compatible with its position in this case because, in those cases, all you had was the contract subsisting.

It entered into the contract with the dominated union and then left things alone.

The Union just operated under the contract but there was no provision for check-off of dues and the company didn't do anything to further the original acts that gave the Union that contract.

I think that it is possible to draw a distinction along those lines.

Justice Felix Frankfurter: But if he -- if the employer refuse to employ somebody who refused to join the Union, that was company-dominated union, if it took a step of refusing employment --

Mr. Norton J. Come: Then you --

Justice Felix Frankfurter: -- that would be just the same kind of an occurring as check-off --

Mr. Norton J. Come: Yes, Your Honor.

Justice Felix Frankfurter: -- (Voice Overlap) an occurring.

Mr. Norton J. Come: Yes, Your Honor, and there was nothing like that.

Justice Felix Frankfurter: Are there cases -- are there cases in which a company union, concededly a company union was operating in the plant, who is in the plant?

Mr. Norton J. Come: Oh, yes, I --

Justice Felix Frankfurter: (Voice Overlap) was taken by the employer to enforce obedience to that arrangement with this company union.

Mr. Norton J. Come: I think that there are, Your Honor, and --

Justice Felix Frankfurter: I meant, just like this.

Mr. Norton J. Come: I think it would be.

The cases that Mr. Dunau refers to, however, are cases in which nothing like that was done.

I --

Justice Felix Frankfurter: Do you have one in your brief where that has been done with reference to a company union as to the statute of limitations, would you call my attention to them so I can see them?

Mr. Norton J. Come: I do not recall that I have one in my brief, Your Honor.

I would be glad to locate one and submit it to the Court after --

Justice Hugo L. Black: I'm not challenging.

I -- I simply want to see it.

Mr. Norton J. Come: Yes, Your Honor.

Justice Hugo L. Black: But you may refuse.

Mr. Norton J. Come: Surely.

Justice Felix Frankfurter: Well, why does the -- in the memorandum in which you submit that, would you make your observations on the cases to which Mr. Dunau refers?

Mr. Norton J. Come: Yes --

Justice Felix Frankfurter: The company-dominated union.

Mr. Norton J. Come: Yes, Your Honor, I will.

Justice Felix Frankfurter: But you do agree that you have to have what -- in order to have an occurring, an intervention by the employer of some sort or other and not merely that the subsistence is something that began prior to the six months?

Do you agree with that or don't you?

Mr. Norton J. Come: Well, I would say that the latter situation would make a much harder case, Your Honor.

Justice Hugo L. Black: Do you decide to be wholly before you at this time?

Mr. Norton J. Come: I think our case, though, is the -- is the case where the -- well, there is something occurring here.

Justice John M. Harlan: You still have to know the facts in order to obtain what you say is a recurring act to the enforcement of the check-off and you -- you still have to go back in order to taint that within the period of limitation by the original vice that inhered in this contract.

Mr. Norton J. Come: There is no question that you do, Your Honor, but that in itself, we submit, is -- is not enough to run a file of 10 (b) because we are not predicating any liability based upon those past acts.

Justice John M. Harlan: Without any liability at all.

Independently of that, you don't have a case.

Mr. Norton J. Come: But, Your Honor, you don't have a case in a number of other situations in which the Court of Appeals have -- has sustained the Board's position.

For example, I give you the situation in -- in the Paramount Cap case in the Eighth Circuit where an employee is discharged within the limitations period.

The employer says he's discharged for cause.

Now, you look at the employer's reasons and it doesn't seem to be caused but you'd have no evidence of anti-union motivation at all occurring within the six-month period.

Justice John M. Harlan: But that's a wholly different situation because there, the charge is that he was discriminatorily discharged.

In order to give color to the character of this discharge, whether it was -- was discriminatory or not, you can then go back and to hear evidence to show what the nature of it was.

Mr. Norton J. Come: Here, Your Honor, the violation, as found by the Board, is maintaining a union security provision that did not comply with Section 8 (a) (3) of the Act.

There is no violation predicated on the execution of the original contract and the dues reimbursement provision excludes that period.

Justice Felix Frankfurter: What you're saying is, if I understand you, that when an employer compels a union -- tells his employees to -- to give up the check-off or -- check-off to put into the security fund, etcetera, that's -- that's a neutral act and what you're doing is to illuminate what that means as to -- for what purposes and what's the meaning of that -- of that conduct.

Is that what you're saying?

Mr. Norton J. Come: Yes, Your Honor.

Justice Felix Frankfurter: And therefore, when it comes to finding out what an ambiguous or a neutral act is, you can resort to evidence which, in and of itself, would not furnish a cause of action.

Mr. Norton J. Come: Yes, Your Honor.

Justice Hugo L. Black: Would you have any case here if you didn't have that particular bridge of illumination signing on facts?

Mr. Norton J. Come: In this particular case, probably not.

However --

Justice Hugo L. Black: Suppose a man --

Justice Felix Frankfurter: (Voice Overlap) --

Justice Hugo L. Black: -- suppose a man gives a note and it's gone.

It's bad.

He doesn't sue on it, he's barred by the statute of limitation statute.

In the meantime, the man gives another note.

Can they go back to the first transaction to see what the second note ordinarily and plead to the statute of limitations?

I suppose this is an ordinary statute of limitations.

Mr. Norton J. Come: Yes, Your Honor.

Justice Hugo L. Black: What about it?

Could you prove that it was bad by going back to the first note ordinarily?

I don't know.

Mr. Norton J. Come: I think you could, Your Honor.

I think that --

Justice Hugo L. Black: Would that be because the first note was bad or because the second note was bad?

Mr. Norton J. Come: Because the second note was bad.

You're predicating liability on the second note.

You're not predicating -- it's like a continuing tort, in -- in a sense, in the example that Mr. Justice Whittaker gave.

Justice Charles E. Whittaker: (Inaudible) one time, the situation is (Inaudible) a cause of action is barred by limitations but it is set up defensively in offset of an affirmative cause of action.

Is it not generally the law that this action, this -- is set up, no barred, may be proved, in diminution or offsets of the affirmative cause of action?

Mr. Norton J. Come: I believe that it is, Your Honor.

Justice Hugo L. Black: Let's go back to my first case.

The notes there are barred the statute of limitations.

Would that be a good defense to it, that it's barred by the statute of limitations?

Mr. Norton J. Come: The original note?

Justice Hugo L. Black: The original note, like you had here.

They had a good defense to you if you tried to do anything on this original execution of this contract, didn't they?

Mr. Norton J. Come: I think so, yes, Your Honor.

Justice Hugo L. Black: Well, does it -- does the first one get worse because the -- the few notes given are the same thing?

Mr. Norton J. Come: I -- I think it is.

I don't think that when you continue to do something affirmatively here, you're in the situation which is contemplated by the notion that you ought to have reposed.

Yet, you'd --

Justice Felix Frankfurter: When you do something --

Mr. Norton J. Come: -- understand --

Justice Felix Frankfurter: -- when you do something, you do something.

Mr. Norton J. Come: That is correct, Your Honor.

Justice Hugo L. Black: Do you understand to be the purpose of the repose?

Mr. Norton J. Come: The purpose of the repose is to bar a --

Justice Hugo L. Black: You look at -- you look at the Act instead of what you're looking at what something somebody's done in the way they reply, instead of looking it at law.

I may see it one way, at another way, the other.

Suppose, here, the -- the man here, you didn't have this second thing at all.

Suppose they hadn't done anything, would you say that you could keep them all the way up to the violation of the law through the years even though the Congress has said that in six years -- six months, it should be stopped?

Mr. Norton J. Come: Well, if --

Justice Hugo L. Black: What is the purpose of that?

What is the objection behind that?

It's reposed, isn't it?

Mr. Norton J. Come: It is reposed when you have stopped the conduct, Your Honor.

Justice Hugo L. Black: Yes, but if --

Mr. Norton J. Come: Had there been a --

Justice Hugo L. Black: You have a contract, you have a system of making contracts and it's desirable at some time, they'd be at rest so that the public people will know whether they have a good contract or not.

Mr. Norton J. Come: Well, Your Honor --

Justice Hugo L. Black: And you would just simply extend it like they've tried to do in conspiracy cases, wouldn't it, by the same method and technique?

Mr. Norton J. Come: Well, Your Honor, when you're enforcing a -- a union security clause each month, as you -- as you did here, you don't have a dispute that dies down.

As the court below observed, the dispute here involved is not the kind which varies easily but rankles at least once a month.

Justice Hugo L. Black: Well, how much did it rankle those six months or that year?

How many rankles did the Board hear about?

Mr. Norton J. Come: Well --

Justice Hugo L. Black: Were there any rankles at all?

Mr. Norton J. Come: Well, we got the -- we got the charge which initiated --

Justice Hugo L. Black: When?

When?

Mr. Norton J. Come: Well, we got the first charge, Your Honor, within 10 months of the execution of the contract which we --

Justice Hugo L. Black: How about that?

Mr. Norton J. Come: --- which, we submit, is not unduly long in these matters because you must remember that the company here was building up its workforce.

You had new employees being added over this period.

It takes a while for the employees to find out what's going on and to build off enough support to want to do something about it.

As I started to point out at the -- at the recess, the kind of situation that you had here -- well, you had the continuing application in the union security clause going on.

We kept the dispute, as the court below pointed out, rankling at least once a month in the mind of the employees, and the record bears this out.

It shows that an error of uncertainty prevailed among the employees as to how the Union got in when they learned of the union security agreement.

Their inquiries met evasive replies and accusations of being troublemakers.

Now, what --

Justice Hugo L. Black: What are you quoting from now?

Mr. Norton J. Come: I'm quoting from the -- my --

Justice Hugo L. Black: I just want to read it if it is in the record.

Mr. Norton J. Come: I think that the findings of the Board, as set forth in -- in our brief, bear out -- I'm paraphrasing, Your Honor, “However, the continued application of the contract kept the employees wondering and toward the end of the first year of the contract when it became appropriate to reopen it, the questioning resumed and at this time, the IAM representative explained to a group of the employees that the Union had gotten in because it had the company connected with Bryan over a barrel.”

This is at Record Reference 101.

Unknown Speaker: (Inaudible)

Mr. Norton J. Come: The IAM representative explained to the employees, as late as the summer of 1955, about 10 months after the contract had run when they were continuing to wonder why it is that they -- that the IAM had -- had gotten this contract.

Justice William J. Brennan: Who passed the barrel?

Well, I --

Mr. Norton J. Come: That the Union had gotten in, this is the IAM representative explaining to the employees because it had a company connected with Bryan, the petitioner here, over a barrel.

In other words, the contract with the Union and Bryan was part of the quid pro quo for settling some other dispute that the Union had with another related employer.

And shortly, thereafter, the charges here were filed.

So you didn't have something that -- that died down right at the outset.

And, we submit, the realities of industrial life are such that, in a matter of this sort, you do not end with the execution of the contract, particularly where, as I pointed out earlier, you have new employees that are being added here throughout the period.

Justice Hugo L. Black: Who was the witness who testified there?

Mr. Norton J. Come: I believe it was one of the employees, Your Honor.

That's at Record 101, testifying as to what the union organizer, Mr. Schwartzmiller, had told him.

Justice Hugo L. Black: Is this Local 701 of the CIO?

Mr. Norton J. Come: This is Local 1424 of -- it was -- I didn't get your question.

Was the witness --

Justice Hugo L. Black: I mean to say --

Mr. Norton J. Come: -- a member of --Did the CIO have -- have a contract any time during its term?

Mr. Norton J. Come: No, Your Honor.

This is the Machinists representative, Local Lodge 1424, the petitioner here, explaining to one of the employees at the plant as to how it was that this Union got into the plant and got a contract which compel the employee to join the Union.

The Board credited this testimony.

Justice Hugo L. Black: When was that given?

Mr. Norton J. Come: That was given in June of 1955, after the contract had run about 10 months, Your Honor, the -- the initial contract.

So, we have here a situation --

Chief Justice Earl Warren: Well, what there -- by that, do you mean that he said they had them over a barrel and -- and they forced him to do it?

Mr. Norton J. Come: That is correct.

Chief Justice Earl Warren: The reason I -- reason I ask that is because the next question was what -- was anything else said?

Answer -- “Was anything said by anyone else on that?”

Answer, “Well, general conversation.”

Question, “What was that general conversation?”

“They wanted to crept to -- they wanted to get it across that they came in legal.”

That's what they were trying to get across to us.

Apparently, not that they had not gotten them over a barrel and coerced them into do it, but -- doing it but, apparently, that they -- there were some relationship that made it legal for them to do this.

Mr. Norton J. Come: Well, the inference, Your Honor, that the Board draws from this testimony and from the related testimony of the other witnesses was that the union organizers made no secret about the fact that they got in not because they had organized the employees but because the employer had given them a contract.

Justice Charles E. Whittaker: Well, that's not disputed, is it not?

Mr. Norton J. Come: No, that is not disputed.

The Union is not denying here or disputing, as I understand it, the findings of the Board that it did not have a majority at the time the contract was -- was entered into.

I just wanted to indicate that the employees continued to have some question about this, long after the contract was -- was executed.

Justice John M. Harlan: Does that bear on the issue you've got?

Mr. Norton J. Come: Well, I think it bears on -- on the issue in the sense that the argument is made that the statute of limitations are intended to -- to give repose.

And our answer to that is that, that is true in a situation where the conduct has stopped but where you have a continuing enforcement of the contract, as you had here, you continue to dispute and it rankled -- it bothered the employees each month, and I was just pointing out that that fact which you could reasonably expect would happen was indeed borne out by the -- by the record here.

Justice Felix Frankfurter: Now, you want -- I beg your pardon.

Justice John M. Harlan: You have that same -- you could make that same argument in the (Inaudible) where there's no union security clause involved.

Mr. Norton J. Come: I think you could, Your Honor, but you'd have greater difficulty in -- in proving that that was sought.

I think that where you have something as affirmative as a continuing collection of dues, you are taking some positive steps within the period to continue the wrong that was perpetrated at the -- at the outset.

Justice John M. Harlan: Supposing the Union, during this period, had been complaisant about the -- the security fee, it accepted the fee and voluntarily paid a followup -- followup on those who pay, what would your situation be like?

Mr. Norton J. Come: Well, I think that we might get close to those company union cases that Mr. Dunau has -- has cited.

It might make a difference where there was no -- where the situation remained passive within the period, but that is not this case and I think that, in this case, we have some very positive acts that were occurring which are clearly -- would amount to additional unfair labor practices but for the 10 (b) problem here.

And we submit that that is no barrier here because we looked at the past events merely for shedding light on what occurred here.

In other words, what I'm trying to say is that whatever may be said of the situation you present, Mr. Justice Harlan, it's pretty well settled, at least in the Courts of Appeals, that you have separate unfair labor practices not only when you enforce an illegal union security clause.

You've got an unfair labor practice at the time of the execution and you have got it when you -- when you enforce it.

The Second Circuit, I think, made that clear in the Gaynor News case which is a little bit closer to the situation that we have here than the illegal on its face cases that I mentioned at the -- at the outset.

In the Gaynor News case, you had a union security clause that was illegal not because of anything that appeared from the face of the contract, I mean, the clause there provided for becoming a union member within 45 days is permitted by 8 (a) (3), but the clause was illegal because, at the time the contract was entered into, there had not been a union shop election as required by Section 9 (e) of the Act.

So, it was necessary to leave the face of the contract for the purpose of ascertaining whether this past event had occurred.

And the Board found and the Second Circuit in an opinion by Judge Frank upheld the Board's finding that 10 (b) was not barred here.

Whatever may be said about the execution of the contract, the maintenance of that illegal contract within the limitations period, notwithstanding the fact that you had to leave the face of the contract to determine its illegality, was a separate unfair labor practice as to which, as Judge Frank put it, the limitations period had not yet begun to run.

Justice Felix Frankfurter: Now, are you arguing, in effect, that through the active enforcement of the 1954 agreement within the statutory period, the 1954 agreement has made a continuing unfair labor practice just as an innocent overt act may continue a conspiracy to demand people in jail or the conspiracy itself has been outlawed and nothing remains except this innocent overt act which pose the agreement into the requisite statutory period?

Justice Felix Frankfurter: Well, it's a very different thing from saying that the original illegality is a continuing illegality and saying that an isolated act within the statutory period is a new unfair labor practice.

They are different things.

It may come to the same result but I think the analyses are different.

Chief Justice Earl Warren: Well, Mr. Come, let me ask you this.

Suppose this charge had not been brought when it was and toward the end of this three-year agreement that they had, the parties entered into another agreement for five years, based upon the same relationship, and nothing was done there until toward the end of the five years of the next contract.

Could they date that back to -- to this unfair labor practice that you are talking about and -- and avoid those situations then?

Mr. Norton J. Come: I think that the logic of the -- of the Board's position, assuming that the contract continued to be enforced --

Chief Justice Earl Warren: Yes.

Mr. Norton J. Come: -- would permit that.

However, we have running across that however.

The concurrent principle of the weight and relevancy of -- to be given to -- to ancient evidence in a situation such as that, it might be extremely difficult for the Board to obtain any probative evidence that could establish the original illegality.

Chief Justice Earl Warren: That's true.

Well, these don't -- these don't bother about how difficult it would be.

Would -- would the Board have the power to do that in the light of this Section 10 (b)?

Mr. Norton J. Come: I think it would, Your Honor.

Justice Charles E. Whittaker: Your answer, if I understand, is upon the maintenance of a relationship --

Mr. Norton J. Come: It --

Justice Charles E. Whittaker: -- not the making of a contract so you can go except the record you (Inaudible) what is done yet to be (Inaudible) it may be legally justified by it, is that it?

Mr. Norton J. Come: Yes, Your Honor.

We are not predicating any liability on the original making of the contract.

We are looking to the events surrounding that and it's not necessary for us to determine that that is an unfair labor practice.

It's -- it happens to be accidental that those past events would to add up to an independent unfair labor practice of their own, but that is irrelevant to the use which the -- which the Board puts the facts that it gathers from the past period.

Justice Charles E. Whittaker: Why do you look to it (Inaudible) at all?

Mr. Norton J. Come: Well, we look to the making of the contract to see whether or not, within the current period, the Union has available to it the defense that it is privilege to exact these dues payments because it was the majority -- it is the majority representative.

The collection of -- of dues and the requiring of employees to join a union as a condition of employment is the clearest form of violation of the Act and had we had nothing more than that and this contract were -- were not in the picture, there'd be no question that there'd be an unfair labor practice.

Now, the company comes forward with the -- with the contract.

At that point, the question is whether the contract really affords them a defense, and the Board is going to the past period there to ascertain whether or not the defense of majority status is available to the Union with respect to the acts that it's performing currently.

Justice Hugo L. Black: Is there anything in the Act, aside from 10 (b), that would provide for any repose, any lack of -- any -- any time at all within a period of years which would make the contract not subject to attack if it would had originally a -- some defect in it, nobody raised it and it was renewed and renewed from time to time for 10 years? Is there anything in the statute?

Mr. Norton J. Come: No, Your Honor, I do not think that there is, other than the difficulties of proof that you would have.

Justice Hugo L. Black: Well, I suppose you -- if it -- like you do now, you'd look back to this first time am I -- employees might have going along for years.

If you ask what year, it's been almost a year, and you just look back to see what happened the first time, then there is no statute of limitations.

Mr. Norton J. Come: There is a statute of limitations with respect to a conduct that has -- that has seized.

Justice Hugo L. Black: As I understand it, here, you will seize it if they have a contract and then renewed a contract and renewed a contract and renewed a contract.

It's still going on.

That's right, isn't it?

Mr. Norton J. Come: That is right, Your Honor.

The original dispute is being continued currently.

It's the -- it's the nature of this particular controversy.

Justice Hugo L. Black: Do you think the Court, under circumstances like that, they might -- I expected you to give another answer, maybe it's -- maybe it wouldn't be a good answer, the courts is just acting somewhat in the equitable capacity to hold that it's barred by laches?

Mr. Norton J. Come: Well, it's been held that laches does not apply to the Government in particularly, the Board proceedings.

However, the Board itself, prior to the enactment of 10 (b), did have a laches principle which it invoked on its own.

If it found that an employee, for example, was unduly delayed in -- in filing a charge of a wrongful discharge, it would toll the running of -- of back pay.

And I think that it is within the Board's discretion and power to do that even apart from -- from 10 (b).

Now, I'd like to talk --

Chief Justice Earl Warren: May I ask you --

Mr. Norton J. Come: Yes, Your Honor.

Chief Justice Earl Warren: -- from -- before we get to that?

Is there any other case prior to this one in which the Board has delineated this policy that you might refer us to or is this the first time that -- that they have done it?

Mr. Norton J. Come: Well, the -- as I -- as I think I indicated earlier, this continuing violation theory is not a new one.

That has been applied in a number of -- of illegal union security cases, all of which are mentioned in our brief, in situations where the agreement was invalid on its face --

Chief Justice Earl Warren: On its face.

Mr. Norton J. Come: -- or in the Gaynor case were not on its face but because of some condition that they didn't satisfy with respect to getting a union authorization election.

This is the first case where the infirmity in the contract is of the type that -- that we have here.

Chief Justice Earl Warren: I believe valid on its face.

Mr. Norton J. Come: Valid on its face, yes, Your Honor.

Chief Justice Earl Warren: Yes.

Justice Charles E. Whittaker: Mr. Come, what was the (Inaudible) and you drew as pertinent to this contract, and they do it defensively to show the justification for what's done today.

Is that right or is it you, the Board, who relies on the contracts?

Mr. Norton J. Come: Well, I think, analytically, it is probably the company and the Union that do but as soon as the contract comes to light, the burden is then shifted to the -- to the Board to establish the validity of the contract.

Justice Charles E. Whittaker: Or the invalidity.

Mr. Norton J. Come: Or the invalidity of it.

Justice Charles E. Whittaker: But until the contract is asserted defensively and the justification which they conduct, there is no such issue, isn't it?

Mr. Norton J. Come: I think, analytically, that is right, Your Honor.

Justice Hugo L. Black: In fact, it broadened it.

Mr. Norton J. Come: Well, as a -- as a practical matter, the Board, in investigating these cases, is going to try to anticipate possible defenses, and they're going to look to see whether or not there is a contract in the --

Justice Hugo L. Black: But they knew that, didn't they?

Mr. Norton J. Come: What's that?

Justice Hugo L. Black: When they started out, they knew there was a contract.

Mr. Norton J. Come: Yes, Your Honor.

Yes, Your Honor.

Justice Hugo L. Black: Wanted a way to find it's invalid or to do something on it.

Mr. Norton J. Come: But I think, analytically, it is correct that the contract is a -- is a defense because if you did not have the contract in the picture and you had only the allegation that the employees were being compelled to join a union and pay dues on its face, there, you -- you have, unquestionably, a -- a prima facie violation of the Act.

Justice Hugo L. Black: By the way, do you have now, without waiting for the memorandum, the cases where the company applied this rule, where the Board applies this rule in company union cases?

Mr. Norton J. Come: I do not have them.

Mr. Dunau has cited some in his brief, and I was going to supply some additional --

Justice Hugo L. Black: Do you mean it supports your view point?

Mr. Norton J. Come: No, “dissupport” his view point.

Justice Hugo L. Black: Well, when -- don't you have any cited that supports yours in what the Board had done before in company union cases?

Mr. Norton J. Come: Well, I -- I have them to support my position in what the Board has done in other situations where they have --

Justice Hugo L. Black: I know.

What company union situations?

Mr. Norton J. Come: The one -- I have one company union case, namely, Superior Engraving, which is cited in our brief.

Justice Hugo L. Black: What's -- what's the name?

Mr. Norton J. Come: Superior Engraving.

That is a Seventh Circuit opinion, Mr. Justice Black, which is 183 F.2d 783.

In that case, I might indicate, the situation was this.

You had a refusal to bargain and unilateral wage increases within the limitations period.

At the time this occurred, the Union did not have -- did not represent a majority of the employees.

Therefore, the employer's action --

Justice Hugo L. Black: What union was that?

Mr. Norton J. Come: What's that?

Justice Hugo L. Black: What union was that?

Mr. Norton J. Come: I don't remember --

Justice Hugo L. Black: Was it a regular --

Mr. Norton J. Come: -- the union.

Justice Hugo L. Black: -- or a company?

Mr. Norton J. Come: No, it was not a company union.

Justice Hugo L. Black: It was not a company union.

Mr. Norton J. Come: It was a regular union.

Therefore, the employer's action was unlawful only if the loss of majority were attributable to prior unfair labor practices.

Now, in that case, it was held that Section 10 (b) did not bar evidence that the employer had engaged in 8 (a) (2) activity with respect to another union which had the effect of dissipating the majority of the outside union within the limitations period.

And the Board's finding of a refusal to bargain was sustained by the -- by the Seventh Circuit.

Justice Hugo L. Black: Was that as part of the evidence?

Did they base it, the holding, at all on the unfair -- on the unfair labor practice at the beginning?

Mr. Norton J. Come: Yes, it was based solely on that because all that you had within the limitations period were actions which, standing alone, did not give you an unfair labor practice.

Justice Hugo L. Black: I'm not talking about standing alone.

What -- you had actions if -- that the Board put its holding on them.

They didn't put it in part on -- or did it, put it in part on the original making of the -- of the original one that was barred?

Mr. Norton J. Come: The original one that was -- that was barred, the assistance to the company union was the basis for finding that the loss of majority of the independent union within the period --

Justice Hugo L. Black: You mean they used that as evidence from which to infer that later on, it was wrong.

Mr. Norton J. Come: That is correct.

Justice Hugo L. Black: Constitute an unfair labor practice.

Mr. Norton J. Come: That is correct, Your Honor.

Chief Justice Earl Warren: In -- in your brief, Mr. Come, did you respond to the citations that Mr. Dunau had in his brief one of these company unions?

Mr. Norton J. Come: I don't think that we did, Your Honor, because we regarded the situation there as being distinguishable in view of the fact that you did not, in those cases, have any of the affirmative action that you had in -- in this case.

Chief Justice Earl Warren: But you didn't distinguish them for us in your brief.

Mr. Norton J. Come: No, Your Honor.I intend to do that in this memorandum that I have leave to follow.

Justice Hugo L. Black: You had his brief before you wrote yours?

Mr. Norton J. Come: Yes, Your Honor, we did.

Chief Justice Earl Warren: Well, you go -- you mean going to write a brief now for us?

Mr. Norton J. Come: No, Your --

Chief Justice Earl Warren: Isn't that --

Mr. Norton J. Come: No, no, Your Honor, I am not.

As --

Chief Justice Earl Warren: I must ask for the cases.

Mr. Norton J. Come: As -- as I understand it, that is right, and Mr. Justice Frankfurter requested, and I understood that that was to be included, that I comment upon Mr. Dunau's cases.

Chief Justice Earl Warren: All right.

Justice Felix Frankfurter: May I ask you this.

Quite -- what do you do with the legislative history, more particularly, the -- the reference to the rider in Senate Report 105?

And I ask that because the Board, in construing this -- in dealing with this problem and recognizing the novelty of it, as they did in terms, don't seem to discuss the legislative history problem.

Mr. Norton J. Come: Yes, Your Honor.

I was just coming to that.

Justice Felix Frankfurter: Good.

Mr. Norton J. Come: We have discussed it in our brief however.

We believe that the riders had a broader sweep than 10 (b).

In the first place, the language of the original rider which was introduced in 1944 provided in relevant part that no funds shall be used in any way in connection with a complaint arising over an agreement between management and labor which has been in existence for three months or longer without a complaint being filed.

This language would have precluded using the agreement for any purposes.

You couldn't predicate a violation on the contract even if it were invalid on its face, a situation which petitioners concede would not be barred by Section 10 (b).

And I think the reason for that is that, and this is borne out by the legislative history of the -- of the riders, that the purpose that Congress had there was a broader purpose than they had with respect to 10 (b).

They weren't concerned solely with protecting against stale claims rather, the riders were designed to prevent interruptions to war production through a tax by outside unions on closed-shop contracts that had been entered into in the -- in the defense industries and -- and the shipyards where the necessary production was being gotten out and the employees immediately involved weren't complaining about the illegality of the contract.

In other words, it was aimed at preventing disruption to wartime production.

What this wartime objective, Congress could well have continence and, we in -- as we think the language of the riders shows, more of an invasion on the statutory rights of the employees.

Then, it was going to permit in 1947 when it came around to enacting a limitations provision as such.

And therefore, we think that when Congress said in the Senate Report that the riders were unnecessary because they were now enacting a limitations provision.

This was merely a generalized statement to the effect that, since they were dealing with questions of liability for past unfair labor practices, specifically in 10 (b), the rider was no longer needed without necessarily suggesting that the scope of the rider was the same as that of 10 (b) which, from the reading that I have given to this Court, it is apparent that it is not.

Moreover, it is very interesting that by the time Congress got around to enacting 10 (b), the rider had -- had been so watered down that in fact, it would even have had less scope than 10 (b) has even under the Board's interpretation because in the years subsequent to 1944, when it was first enacted, they excluded contracts with company-dominated unions.

In other words, the three-month bar didn't -- didn't apply to that kind of a contract.

They excluded renewals of an -- this is from the riders, renewals of an existing contract on the three-month limitation.

And then the very same Congress which enacted 10 (b), despite the fact that they said that the rider wasn't necessary, goes ahead and nevertheless enacts a rider for 1948.

And in that rider, they give immunity only to contracts with a majority union, and the reason they say that is that they didn't want to sanction these sweetheart arrangements.

But a contract is entered into when the union does not represent a minority.

Justice Felix Frankfurter: Do you think that repealed Section 10 (b) if it doesn't accept the application and the report indicating it has -- should have?

Mr. Norton J. Come: Well, I think it -- it means that the statement in the report should not be taken -- given literal effect to it in any way that --

Justice Hugo L. Black: Did it refer to it?

Mr. Norton J. Come: What's that?

Justice Hugo L. Black: Did it refer to it?

Mr. Norton J. Come: Well, there's no question that 10 (b) -- that the report did refer to the rider.

But --

Justice Hugo L. Black: I mean, did the -- this last one you're talking about now, did it refer to the report on 10 (b)?

Mr. Norton J. Come: It did not refer to the report.

Justice Hugo L. Black: Did it say anything inconsistent with it?

Mr. Norton J. Come: Well, it certainly said the statement that it has made is inconsistent with the interpretation of 10 (b) that the petitioners are urging here.

Justice Hugo L. Black: Is it inconsistent with the interpretation that was shown should be made by that report?

Mr. Norton J. Come: I don't think that the report indicates what interpretation should be made.

It merely says that they're imposing a statute of limitations and that makes the rider unnecessary.

Justice Felix Frankfurter: May I -- I'm a little confused.

Mr. Norton J. Come: Yes, Your Honor.

Justice Felix Frankfurter: I think you can clear me out.

A few times in Mr. Dunau's brief, he said also, the House Report No. 105 and, I gather, that report dated April 17, 1947.

Is that right?

Mr. Norton J. Come: Yes, Your Honor.

Justice Felix Frankfurter: Now, it refers to the current appropriations within the three-month period.

The rider to the then current appropriations bill to which the Senate Report referred has this provision which has been in existence for three months or longer without complaint.

I understood you to say that at the time this report was written, the rider had been watered down.

Is that right?

Mr. Norton J. Come: Yes, Your Honor.

Justice Felix Frankfurter: Now, what rider are you referring?

It can't be the rider that the Senate Report was referring to because I gather that Mr. Dunau wants me to believe, wants me to assume that the rider referred to in this Report No. 105 is the one he sets forth on page 36, and that isn't any watering down.

Mr. Norton J. Come: Well, it is watered down to this extent.

It is watered down to the extent that it exempted contracts with company-dominated unions because that was put in 1945 and also, renewals of existing contracts.

Justice Felix Frankfurter: Does that mean -- was that true of the rider of which -- which the next record given on page 36 of his brief?

Mr. Norton J. Come: I believe it isn't --

Justice Felix Frankfurter: But it doesn't say anything about this company.

It doesn't give any indication that there was anything there except for these quotes.

Mr. Norton J. Come: Well, the -- it is Your Honor.

The “provided further,” that's down at the bottom of 36 and up at the top, “provided further that these limitations shall not apply to agreements”.

Justice Felix Frankfurter: But it is borne in violation.

(Inaudible)

Justice William J. Brennan: The report says that (Inaudible) is removed.

Mr. Norton J. Come: In the first clause there where it says “no part of the funds appropriated shall be used in connection with a complaint case arriving over an agreement -- an agreement or a renewal thereof”.

Now, the Board's explanation of that clause “or a renewal thereof” is given in its report which is on pages 42 and 43 of Mr. Dunau's -- on page 48, I'm sorry, Your Honor.

Mr. Norton J. Come: Under the 1945 amendment in contrast to the 1944 limitation, the renewal of an agreement, even though by virtue of the operation of an automatic renewal clause, starts anew a running of the three-month period during which a charge attacking the agreement may be filed.

Justice Felix Frankfurter: Now, is that --

Mr. Norton J. Come: Then, on top of -- of those two things, you have added the majority union exception that I mentioned, which it is true, was passed after the Senate Report was issued but nevertheless, was enacted by the very same Congress which enacted 10 (b).

Justice Felix Frankfurter: Do you regard the valid -- the -- the 1945 contract year as a renewal -- the second contract, the 1950 (Inaudible) I beg your pardon.

Do you regard that as a renewal within the term of the rider?

Mr. Norton J. Come: I think it could be, yes, Your Honor.

Justice William J. Brennan: Well, if it was a rider, the rider wasn't applicable to testify, wasn't it?

Mr. Norton J. Come: It wasn't applicable in 1955.

It -- it stopped --

Justice William J. Brennan: (Inaudible)

Mr. Norton J. Come: What is that?

No, no, it -- it --

Justice William J. Brennan: It's nothing but the 10 (b) though.

Mr. Norton J. Come: That is correct, but I'm -- I'm merely saying that if you're going to interpret 10 (b), precisely what the scope that the rider would have had, by the time 10 (b) came around, the rider was watered down to such an extent that it would not have precluded the Board from reaching the kind of a contract that you had in this case.

Justice Felix Frankfurter: If you are to get -- if we are to get illumination from the reference to the rider in the Senate Report, the illumination must be from the totality of the rider and not a part of it.

The chief thing they did was to say that company unions couldn't take advantage of this as it give them the repose, is that it?

Mr. Norton J. Come: That is one of the things that they said, Your Honor.

Justice Hugo L. Black: You're drawing from that conclusion that --

Mr. Norton J. Come: No.

No.

Justice Hugo L. Black: -- could be entirely construed --

Mr. Norton J. Come: No.

Justice Hugo L. Black: -- as to those that are not company unions?

Mr. Norton J. Come: No, I said they did two other things.

They also exempted renewals of an existing contract and finally, in 1948, they exempted the contracts with minority unions.

Justice Hugo L. Black: You mean exempted renewals authorizing an attack on the renewal from the date it was renewed.

That's what you mean, isn't it?

Mr. Norton J. Come: Yes, Your Honor.

Justice Felix Frankfurter: And that's this case?

Mr. Norton J. Come: Yes, Your Honor.

Justice Hugo L. Black: Well, was this -- when was this -- when was this contract renewed?

Mr. Norton J. Come: It was renewed in August of 1955.

Justice Hugo L. Black: When was it made?

Mr. Norton J. Come: It was made in August of 1954.

Justice Hugo L. Black: But it doesn't come then within the time, the six months, doesn't it?

Mr. Norton J. Come: The charges were filed with -- in -- in June of -- in August of 1955.

Justice Hugo L. Black: There would be no -- he would have no case here, would he, if he was claiming -- if you were claiming that unfair treatment of contracts dated from the time the renewal of contract was renewed?

Mr. Norton J. Come: Well --

Justice Hugo L. Black: It was within six months of that, wasn't it?

Mr. Norton J. Come: Yes, but you would still have to prove the illegality in the renewal from the -- from the past elapsed --

Justice Hugo L. Black: So, we would have -- so that you'd have no repose then.

Mr. Norton J. Come: You'd have no repose because they were continuing the contract, and the point I'm making is that you wouldn't have had a repose under the rider either.

Justice Hugo L. Black: Could you -- do you have enough evidence here to justify a holding is an unfair trade practice considering this only as the renewal of the contract?

Has that been decided?

Mr. Norton J. Come: I think that we have the same -- we would have to rely on the same evidence that we rely on for holding that the maintenance of the old contract and the renewal of the --

Justice Hugo L. Black: Well, you mean you -- you couldn't prove that they had -- didn't have a majority when they made the renewal of contracts, is that it?

Mr. Norton J. Come: You couldn't prove it without regard to how the majority was obtained to begin with.

It was a coerced majority at the outset.

Justice Hugo L. Black: Yes.

Mr. Norton J. Come: And that momentum continued throughout the period because there was nothing done to dissipate the momentum.

It was built up by the -- by the original coercion, Your Honor.

Justice Hugo L. Black: Did you try to prove here that there wasn't a majority when they renewed it?

They didn't represent the majority?

Mr. Norton J. Come: Well, you couldn't do that because the check-off was operating and every employee who --

Justice Hugo L. Black: It has been operating for about 12 months.

Mr. Norton J. Come: That is correct, Your Honor, but the question is whether that check-off was properly entitled to operate or not.

Justice Felix Frankfurter: And as a matter of substantive law, the fact that they've been operating 10 months wouldn't make any difference in the orders in which this Court had sustained, telling the employer to take affirmative measures to undo what he had properly -- illegally done.

Mr. Norton J. Come: That is correct.

That is the holding of the Franks Brothers case.

Justice Felix Frankfurter: Yes.

That's what this Court has decided.

Justice Hugo L. Black: Well, is this based on the fact that they've disobeyed an order or is it based on the fact that they made an illegal contract and then renewed an illegal contract?

Mr. Norton J. Come: Well, it is not based on an order of this Court but the principle of the cases that Mr. Justice Frankfurter is referring to is that once the employer has engaged in a course of illegal conduct which has had the effect of dissipating the -- the Union's majority, unless there is some affirmative action to remedy that, it cannot, and the Board is justified in -- in so holding, you cannot create --

Justice Hugo L. Black: That was defined in cases where there were no statutes of limitations involved, was it not?

Mr. Norton J. Come: That is correct, Your Honor, but the -- but the principle, we submit, is the -- is the same here.

My time has expired.

I -- I just want to indicate that the Board's position on the reimbursement point, we believe, is fully set forth in our brief.

Thank you.

Argument of Bernard Dunau

Mr. Bernard Dunau: Unless there aren't any questions, I have nothing further.

Justice William J. Brennan: I would like to ask this one question.

Mr. Bernard Dunau: Yes, sir.

Justice William J. Brennan: Suppose this rider in effect (Inaudible)

Mr. Bernard Dunau: Yes, sir.

Justice William J. Brennan: (Inaudible)

Mr. Bernard Dunau: It would have barred this charge because certainly, with respect to the --

Justice William J. Brennan: As I understand it, the charge was by (Inaudible)

Mr. Bernard Dunau: That is correct.

Justice William J. Brennan: Another charge was filed with (Inaudible) contemporaneously, I gather, the renewal agreement.

Mr. Bernard Dunau: Well, the -- actually, no.

The second charge -- I believe the second agreement was entered into after the second charge was filed.

Justice William J. Brennan: After the second.

Mr. Bernard Dunau: That is correct.

Justice William J. Brennan: They were both filed on August (Inaudible)

Mr. Bernard Dunau: One charge was filed in June.

The second charge was filed in August.

Justice William J. Brennan: And in some other day in August, the renewal (Voice Overlap) --

Mr. Bernard Dunau: That is correct, sir, yes, sir.

Justice William J. Brennan: Now, under the renewal or rather under the rider, the Board interpreted that in a footnote.

Mr. Bernard Dunau: Yes, sir.

Justice William J. Brennan: Now, that renewal gave (Inaudible) attacked three months after the respective date.

Mr. Bernard Dunau: That is correct, sir.

Justice William J. Brennan: Why do you say it's not under the defense?

Mr. Bernard Dunau: We -- we can divide it into two parts.

The Board made one finding, namely, that maintenance of the first agreement into a -- in effect, constitute a violation of the Act.

That could certainly not have been litigated under the rider because it -- the charge came more than three months after that agreement.

Now, it seems to me that when the rider said a renewal can be -- a renewal agreement can be attacked within three months, it said, “Yes, from three months on August 31st, 1955, you can attack that agreement,” but I do not think it said at the same time that if your evidence necessary to attack that second agreement has to go back to the evidence which would open the first agreement, and you were barred from opening the first agreement, that the rider would not have protected both the first and the second, otherwise, on the renewal, you would have reopened what have been closed by the first --

Justice Felix Frankfurter: Do you think that attacks the matter that as a matter of evidence, if it's a matter of substantive law, the renewal revives or continues the original illegality that you can't, as a matter of evidence, resort to -- to that which substantively is barred.

In other words, if the statute of limitations may bar a cause of action but it doesn't bar other evidence.

Mr. Bernard Dunau: It does not bar evidence, Your Honor, except if you're going to get any effect either to the riders or to Section 10 (b).

It must bar the substantive unfair labor practice which precedes, by more than six months, the charge, else, you have never barred the unfair labor practice.

Justice William J. Brennan: You can't bring it back to anywhere we've been --

Mr. Bernard Dunau: I --

Justice William J. Brennan: (Voice Overlap) under 10 (b) (Inaudible)

Mr. Bernard Dunau: I think you're -- that is correct.

Justice William J. Brennan: The problem is different from the rider.

Mr. Bernard Dunau: The pro -- yes, sir, it is different because under the rider, there is no possible claim that you there -- under the rider, you have to file your charge within three months of the inception of the agreement.

It says so in so many words.

Now, our argument is, if under the rider you have to file your charge within three months of the agreement, we cannot understand an interpretation of Section 10 (b) which replaces the rider which says that you do not measure the limitations from the inception of the agreement but from -- well, you don't measure it from anything because it continue -- it never runs.

Justice Felix Frankfurter: And you say -- and you say I can't read the riders to say that the renewal sustained and continues in light of the original agreement and therefore, the effective -- the -- the base point for -- as a matter of time, is the renewal.

They're not the original that which is renewed.

Mr. Bernard Dunau: What we draw from the riders and all we draw from the riders is that when Congress was dealing with this explicit situation of an agreement valid on its face but illegal because it was entered into with a minority union, it started its limitations period running from the date the execution of the agreement -- from the date of the execution of the agreement and the Board always understood, even after the 1945 rider was enacted which had the renewal language in it.

It said in its annual reports, “We cannot attack an agreement once the three months has expired even with a union which did not represent the majority when the agreement was executed."

That's what we draw from the riders.

Justice Potter Stewart: (Voice Overlap) say it's true at all that the 1948 rider can provide the security on (Inaudible)

Mr. Bernard Dunau: The 1948 rider is a totally different situation.

Justice Potter Stewart: That was being passed in those recent times.

Mr. Bernard Dunau: Yes, sir, but it was --

Justice Felix Frankfurter: Did they incorporate it in the committee report?

Mr. Bernard Dunau: No, sir.

Justice Felix Frankfurter: No?

Mr. Bernard Dunau: No, sir.

No, sir.

If -- we'd have a wholly different --

Justice Potter Stewart: That -- that rider, by its very terms, conserve to (Inaudible) or make no limitations.

It's a meaningless rider the way it's written because you don't need a rider to protect an agreement entered into with a majority union.

And if you read the rider -- the 1948 rider literally, that's all you get out of it.

You get nothing from it.

It seems to us that the true explanation of the 1948 rider is that this whole limitations problem had already been settled by Section 10 (b) and if a couple of Senators or Congressmen wanted to enact the limitations rider having a different policy than Section 10 (b), nobody in Congress was interested in opposing it because the problem had already been settled in 10 (b).

Justice Charles E. Whittaker: Mr. Dunau, is the (Voice Overlap) --

Chief Justice Earl Warren: Go ahead.

Justice Charles E. Whittaker: Can I still ask him a question?

Chief Justice Earl Warren: Yes.

Justice Charles E. Whittaker: Is it of any significance to your case that the contract was made in August 1954?

Mr. Bernard Dunau: Well, it's significant in that, as a date, it is more than six months preceding the filing of the charge.

That's the only significance I draw from August 1954, if I understand the question.

Justice Charles E. Whittaker: Do you think then you are -- aside from that fact, just as well off as though there were no contract at all?

Mr. Bernard Dunau: Well, probably not.

If there were no contract at all, the Board would have a heck of a lot of more problems by way of proof, but I don't see that -- that -- analytically, it makes a difference whether the contract which reports the relationship is reduced to writing or whether the relationship is a practice which is unrecorded in writing.

Now, what we always get back to, and this is the finding of the Board from which, it seems to me, there is no escape of where we must begin, this is a product contract used defensively, all kinds of -- of verbalisms have been resorted to.

The finding is explicit.

The finding is that at the time the company and the IAM executed the August 1954 agreement, the Unions did not represent the majority of the employees covered by the agreement but that --

Justice Hugo L. Black: What page is that?

Mr. Bernard Dunau: I am reading from page 10 of my brief, Your Honor, which cites the Board's relevant finding on this subject.

This is the finding, that on August 10, 1954, the company and the Union entered into an agreement and the Union didn't have a majority.

And then, we have the crucial finding of the substantive violations.

It follows, therefore, and we find that the company violated Section 8 (a) (1), (2) and (3) and the Unions 8 (b) (1) (a) and (2) by maintaining in effect the 1954 agreement and by executing and maintaining in effect the 1955 agreement, both of which, contained unlawful union security clauses.

But what the Board was doing was finding that the agreements constituted unfair labor practices, the maintenance in effect and the execution and maintenance of the second agreement.

Not defensively, they weren't finding unfair labor practice upon any other basis.

And I might just add this, Your Honors, the union security provision of this agreement is, in this case, a red herring.

Nothing turns upon the fact that there is a union shop provision in this agreement.

We have the cases cited on our brief.

Without a union shop agreement, you get exactly the same violation of Section 8 (a) (1) and (2).

As the Board has stressed, all that the union shop provision does is to aggravate the violation.